Updated October 1, 2021
A letter of testamentary names its possessor and bearer as the executor of an estate. The executor of an estate has overarching powers and responsibilities to ensure that the estate of the deceased individual who named them as such is managed according to their dying wishes (or at least the wishes expressed in their will).
How to Get a Letter of Testamentary
- Obtain a Death Certificate
- Get a Copy of the Will
- Submit to Probate Court
In most states, an individual who wants to issue specific instructions regarding how their estate should be managed and/or parceled out to beneficiaries must capture their wishes in writing. They can write the document themselves or have a lawyer do it for them, but in many states, it will need to be signed by two witnesses and notarized.
If someone dies without a last will and testament, that person is said to die intestate, and their property goes into probate—a process where the state will parcel out the property to inheritors based on a hierarchy established in state law. If there are no heirs, the property will be turned over to the state.
Someone writing or dictating their last will and testament will need to pick an executor of the estate or estate executor, who will make sure the wishes of the deceased are carried out. As you can imagine, bestowing such a role on someone is a high indication of trust in their character and ability. Many people choose to have a neutral but professional third party become the executor, such as a trusted lawyer. However, some individuals choose to have a friend or family member serve as the executor, even if that person is not familiar with issues like how to avoid estate taxes or the best strategies for investing inheritance.
What is a Letter of Testamentary?
Whoever the executor of the estate may be, in order to carry out any of their duties—such as selling off or transferring property, paying off debts, making charitable gifts, and even parceling out personal family heirlooms—will need a letter of testamentary, also known as a letter of administration.
This letter shows you have the legal authority to manage the estate assets and perform the acts listed above, among others. A letter of testamentary gives you the legal ability reach out to a financial institution like banks, mortgage lenders, creditors, and other relevant parties—like life insurance policy providers.
What if There are Multiple Executors?
Letters of testamentary can be issued if there are multiple executors, such as a case where there are co-executors. Please note, however, that co-executors do not have a 50/50 control over the deceased person’s estate. They must come to a joint decision regarding any issue of estate administration.
As you can imagine, this can occasionally lead to conflicts, so it is often preferable to name one executor to manage the deceased person’s property. There may also be instances where a financial institution needs all the letters testamentary if there are co-executors, along with signed paperwork clarifying joint decisions over the deceased person’s property.
Typical executors may include a legatee (one who inherits a legacy), like a surviving spouse, child, close friend, or trusted fiduciary advisor. In many instances, the testator (the one writing the will) will name a non-family member as the executor, not only to avoid family conflicts, but to take the burden of managing their asset classes off their heirs. This allows heirs, friends, and distant relatives to grieve and heal without worrying about legal battles or filing onerous and painful paperwork in the wake of a loved one’s passing.
What if an Executor Can’t Fulfill the Role?
Of course, the ultimate decision of who manages their estate is up to the testator, but he or she will want to make sure that the executor agrees to this role. If the testator names someone as the executor without this person knowing, that individual may choose to decline the honor and responsibility of this role before the probate court. This will send the deceased person’s assets into probate and the process of intestate successions, which can draw out the process, incur a filing fee, and perhaps even yield an outcome vastly different than the last dying wishes of the testator. This is why it is also a good idea to name a backup executor, in case the preliminary executor cannot (by choice or incapacity) fulfill their duties.
How to Get a Letter of Testamentary
Step 1: Obtain a Death Certificate
The first step in securing a letter of testamentary is obtaining a death certificate. In most cases, you can obtain a death certificate from your local department of vital records, county recorder, or health department. This death certificate will list the date, time, and cause of death, and in some states, includes personal information about the deceased, such as the names of their parents and their marital state at the time of death.
In some states, death certificates are public records that can be obtained by anyone, and in other states, only relatives of the deceased can obtain a death certificate. Oftentimes, you can also obtain a death certificate through a funeral home or a third-party company like VitalChek.
Obtaining a death certificate could be a problem for an unrelated named executor in states that require you to be a family member to obtain a copy. It’s not impossible, though. Start by asking the local department of vital records (or similar department) what they need from you to process the request.
Step 2. Get a Copy of the Will
Next, you will need to secure a copy of the last will and testament of the deceased. This process will vary from state to state, but in most cases, there is a government department, like the Record’s Division or Register’s Office, where you can obtain a copy.
You will need to meet the requirements for showing that you are the executor listed in the will, which will likely require showing at least one form of identification. In many cases, the executor of the estate will already possess a copy of the will, given to them by the deceased beforehand. In fact, it is very common for the executor to have full knowledge of where the original copy of the will is held. A common place for this might be a security deposit box at a bank, where the executor is listed as a party who can access the deposit box.
If the decedent passed away without a will, it is wise to seek legal advice from a probate attorney to guide you through the intestate succession process, as you will need to file numerous legal documents with the probate court to prove you are the rightful beneficiary to the estate.
Step 3. Submit to Probate Court
The final step toward obtaining a letter of testamentary involves petitioning the probate court appearing at the local courthouse in front of a judge or court representative.
While you may be hoping to avoid the probate process, the probate court is often the entity responsible for verifying potential executors and furnishing them with a letter of testamentary.
Bring a copy of the death certificate, a copy of the last will and testament, and anything else the court will need to verify your identity, as well as payment for any court fees. The cost of obtaining a letter will vary based on the state and the size of the estate in question, from as little as $45 up to $1,200 for some larger estates.
Once you have obtained the letter, you will want to make copies of it, along with the death certificate and the will, in case any action you attempt to do or prevent requires you to furnish documents, such as closing a bank account, transferring property, or gifting a prized collection.
It’s also important to make sure you have multiple certified copies of the death certificate, which may be required by certain banks and lenders. Usually, 10 copies are more than sufficient to conduct the business of managing the deceased’s estate.
Do I Need a Letter of Testamentary with a Trust?
A trust is a legal vehicle that you can use if you are wanting to avoid probate entirely. It can also avoid some of the legal battles that can ensue even if you have a will.
A trust is a legal document that is set up by a trustor to grant a beneficiary the right to use and enjoy their property and/or assets. These assets are typically managed by a trustee. This setup can help avoid inheritance taxes or estate taxes, as well as reduce the amount of paperwork that needs to be filed and processed. Trusts are set up during the trustor’s lifetime, and essentially transfer use of the assets to the named beneficiaries before the trustor passes away (thereby evading issues around transference of property or inheritance).
This type of arrangement is also referred to as a living trust.
A Letter of Testamentary Allows Estate Executors to Take Control of Assets
It can be quite flattering to be named the executor of an estate. In most cases, the executor will know before they are so named, but in some rare instances, the deceased might have named one without warning—for any number of reasons, including to avoid family arguments.
It is not difficult to obtain the required paperwork (a death certificate and copy of the wills) and appear before the probate court to secure a letter of testamentary. But it can be a time-consuming and expensive process, especially if it is an intestate estate.
Those wanting to avoid the probate process entirely would be wise to set up a revocable living trust for their heir. Thankfully, the Anderson Advisor estate planning experts can assist with this process. To learn more, schedule a consultation today at 800.706.4741